Americans, ever eager to indulge in their exceptionalist fantasies, have long believed their constitutional system is a model of restraint, that the document framed in Philadelphia in 1787 provides a bulwark against despotism. This belief, held with the conviction of religious dogma, has taken a beating in recent years.
The fear gripping much of the American public is unprecedented in modern times. Donald Trump’s enemies list, his open hostility toward dissent, and his barely veiled threats to jail political opponents, suggest he intends to govern with even fewer constraints than before. The problem, however, is not Trump per se, but rather the legal and constitutional architecture that makes his ambitions entirely plausible.
For decades, Americans have comforted themselves with the notion that legal safeguards will prevent executive abuses. Yet Trump’s first term already exposed these supposed checks as flimsy and illusory. The Supreme Court, that lofty guardian of constitutional principle, signalled its willingness to accommodate even the most dubious assertions of executive authority, most notably in Trump v Hawaii, where it upheld his travel ban targeting several Muslim-majority nations.
That decision, presented in the language of legal neutrality, was, in reality, an endorsement of raw executive power grounded in malice exercised with the flimsiest of national security pretexts.
More recently, the Supreme Court has done away with even the pretense of meaningful presidential accountability. In Trump v United States, the court took the bold step of placing criminal immunity within arm’s reach of any president willing to claim that his misdeeds were undertaken “officially”.
The decision was a blank cheque — one that future presidents, not just Trump, will be all too eager to cash. And should the court ever find itself ruling against Trump in some future matter of legal consequence, it would face a predicament rarely acknowledged in polite constitutional discourse: what exactly could be done if Trump simply ignores the ruling?
There exists no mechanism for compelling , should a president — shielded by a loyal attorney-general and a pliant justice department — refuse to abide by a judicial decree. In theory, he could be impeached; in practice, Senate Republicans have already demonstrated that accountability is contingent on political convenience, not constitutional principle.
Even more troubling is Trump’s nearly unchecked pardon power, a safeguard against justice itself. Unlike in most democracies, where executive clemency is subject to legislative oversight or review, the US president wields an absolute pardon power that can be deployed with impunity.
Trump has already provided a preview of how he intends to wield this authority. He has rewarded political loyalists, shielded allies from legal consequences, and signaled to future accomplices that obedience will be met with absolution. This is a dismantling of the rule of law.
Where Bush invoked national security to bypass legal protections, Trump invokes the same rationale to circumvent democratic norms
None of this is without precedent. Before Trump came George W Bush and Dick Cheney, who also ruled under the illusion of constitutional restraint. The Bush administration, after 9/11, established a blueprint for executive overreach that has since become standard practice.
Bush and Cheney built an entire infrastructure of extrajudicial detention, warrantless surveillance, and legalised torture. The administration pushed through the USA Patriot Act, which vastly expanded government spying powers, instituted extraordinary rendition programs to outsource torture, and established the legal black hole of Guantanamo Bay — where detainees were held indefinitely without trial, subjected to “enhanced interrogation” methods akin to medieval torture techniques.
The mere spectre of terrorism was used to justify an unprecedented erosion of civil liberties. Habeas corpus, that ancient safeguard against arbitrary detention, was rendered all but meaningless. Warrantless wiretapping, once anathema to constitutional governance, became the norm. The National Security Agency was unleashed on the American public, collecting phone records and metadata en masse, all in the name of national security.
The administration’s legal theory was simple: the president, as commander-in-chief, could do virtually anything in the name of fighting terrorism, including violating the constitution itself. Where Bush justified indefinite detention and torture, Trump justifies political retribution and purges of the civil service. Where Bush invoked national security to bypass legal protections, Trump invokes the same rationale to circumvent democratic norms.
The public may have been disturbed by the authoritarian overreach of the Bush years, but it was never properly repudiated. Instead, it became institutionalised, ensuring that future presidents could inherit the same tools with far fewer constraints. Indeed, the judiciary has repeatedly reinforced the notion that when it comes to foreign affairs and national security, executive power is owed deference — even in cases involving grave human rights violations such as genocide.
In Defence for Children International-Palestine v Biden, a federal court in California faced a case that should have tested the limits of executive impunity. Plaintiffs sought to hold the government accountable for providing military aid to Israel, alleging that American tax dollars were facilitating genocide and war crimes in Gaza. The court dismissed the case, reaffirming that even in the face of credible allegations of complicity in atrocities, the executive branch remains untouchable.
The logic of deference is almost plenary when national security and state secrets are invoked. In United States v Zubaydah, the Supreme Court ruled that the CIA’s use of torture at a secret “black site” was a matter too sensitive for public scrutiny. Abu Zubaydah, who endured waterboarding, confinement in small boxes, and other medieval brutalities, sought only to depose the contractors responsible for his abuse. The court ensured that his case would never see the light of day, invoking the ever-expansive doctrine of state secrets.
The irony, of course, is that other nations have already acknowledged and compensated victims of CIA torture. The European Court of Human Rights forced Poland to pay Zubaydah damages, and Lithuania was compelled to compensate another detainee. But in the US — the nation that orchestrated these abuses — accountability remains as elusive as ever.
The belief that the constitution inherently protects against despotism has always been an illusion. From slavery and the genocide of indigenous peoples to Jim Crow, the internment of Japanese-Americans, the Red Scare, the “war on terror” and repression of dissent against Israeli genocide, American history reveals that power consistently trumps justice. The constitution has not been a shield against oppression, but a legal instrument easily bent to serve the ambitions of those who wield authority.
Trump is merely the latest and most explicit beneficiary of this system. The crisis of American democracy is not that it has failed to live up to its ideals, but that those ideals, from the very beginning, were never quite what they seemed.
• Motala is professor of law at Howard Law School
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